PUREFLOW SOLUTIONS PTY LTD
ACN 671 141 521
1. Purpose And Application
1.1.These Terms of Trade apply to all Orders by you from Pureflow Solutions Pty Ltd ACN 671 141 521 (us, we, our).
1.2.If more than one Person is the Customer those Persons contract jointly and severally for themselves and each other.
1.3.Where the Customer as trustee of a trust incurs a liability for the Goods and Services to the Company the Customer will incur that liability personally as well as in its capacity as trustee.
2. Governing Law And Australian Consumer Law
2.1.This Agreement is governed by and construed in accordance with the laws of Victoria, Australia and the parties submit to the jurisdiction of the Victorian courts.
2.2.Nothing in this Agreement is intended to exclude, restrict or modify rights which the Customer may have under the ACL or any other Law.
2.3.If any provision of this Agreement is invalid under the ACL or any other Law, that provision is enforceable to the extent that it is not invalid, and if it is not possible to give that provision any effect at all, then it is to be severed from this Agreement and the remainder of this Agreement will continue to have full force and effect.
3. Supply Of Goods And Services
3.1.The Company and the Customer agree that the Company will supply the Goods and perform the Services to the Customer pursuant to these Terms of Trade and any Order submitted.
3.2.You must provide sufficient information with an Order (including any special requirements) to enable us to provide you with the Goods and Services.
3.3.We may refuse to accept an Order (or part of it) on reasonable grounds.
3.4.If an Order includes any special conditions agreed by us, they will, unless stated otherwise take precedence over these terms.
4. Contract Prices
4.1.A Quotation will be valid for 7 days only from the date of issue and may be adjusted by us prior to you placing an Order.
4.2.The acceptance of a Quotation may be occur by your written or oral consent, including by Electronic Signature.
4.3.The Contract Price is inclusive of delivery costs, GST and all other taxes, duties or government charges levied in respect of the Goods and Services except to the extent that they are expressly included in the Contract Price.
4.4.There is no right of set-off in respect of any claims against the Company.
5. Referral Program
5.1.The Company may offer advertising or other Customer incentives including a referral program from time to time.
5.2.Any Customer incentive is at the sole discretion of the Company and may be revised or varied at the sole discretion of the Company.
6. Payment
6.1.Unless otherwise agreed with the Company, You must pay the Deposit by the time specified in the Order and payment of the remainder of the Contract Price must be made in accordance with the Tax Invoice issued by the Company.
6.2.Unless otherwise agreed in writing by the Company, payment will be made by credit card or EFTPOS.
6.3.Credit Account Customers must pay the Contract Price immediately upon release of the relevant funds by the third party provider in accordance with the terms of their approved Credit Application.
7. Default In Payment
7.1.Where you fail to make full payment of the Price by the due date, we may:
7.1.1.refuse to supply you with further Supplies; or
7.1.2.require you to pay for further Supplies in full prior to delivery; or
7.1.3.impose interest on any overdue amounts a rate of 12% per annum compounded daily from the date of due payment until the date of payment in full of the overdue amount.
7.2.Time is of the essence in respect of your obligation to pay the Contract Price.
7.3.The Customer will pay to the Company upon demand all costs and expenses incurred by the Company as a result of the delay in payment.
8. Cancellation By Customer
8.1.The Customer acknowledges and agrees that once a Customer submits an Order to the Company the Company will incur costs in provide the Goods and Services. As a result, the Order cannot be cancelled and any Deposit paid to the Company is non-refundable.
8.2.If the Company has reason to believe that it will be unable to supply an Order to the Customer within a reasonable time or at all due to circumstances beyond its reasonable control, the Company may, without penalty, cancel the Order, in which case, the Company will refund the Customer any amount of the Contract Price already paid in respect of that Order.
9. Risk
Risk of loss and damage to the Goods passes to the Customer upon delivery to the Customer’s Premises. Where the Company is engaged to install the Goods, risk passes to the Customer upon completion of installation of the Goods.
10. Title To The Goods
10.1.Ownership of and title to the Goods remains with the Company until the Customer has paid the Company in full the Contract Price and any other money that the Customer may owe to the Company at any time on any account.
10.2.Until ownership of and title to the Goods passes to the Customer:
10.2.1.the Customer will not, without the Company’s consent:
10.2.1.1.make any alterations to the Goods or do or allow anything to happen to the Goods that might contribute to the deterioration in their value or otherwise adversely affect the interests of the Company;
10.2.1.2.sell or dispose of the Goods except in the ordinary course of its business; and
10.2.1.3.charge, encumber or create a Security Interest in the Goods.
10.3.The Company may give notice in writing to the Customer to return the Goods or any of them to the Company and, upon such notice, the Customer’s right to obtain ownership or any other interest in the Goods will cease.
10.4.If the Customer supplies the Goods to any Person before ownership of and title to the Goods passes to it, whether or not with the Company’s consent, the Customer holds the proceeds of the resupply of the Goods on trust for the Company and will pay the proceeds of sale to the Company upon receipt.
10.5.If the Customer breaches clause 10.2.1 the Company may enter upon the Customer’s Premises, or any other site, to repossess the Goods without incurring liability to the Customer or any other Person, and the Customer grants the Company an irrevocable licence to do so and will indemnify the Company for any adverse consequences of such action.
11. Personal Property Securities Act 2009
11.1.The Customer acknowledges and agrees that:
11.1.1.this Agreement constitutes a Security Agreement under the PPSA which creates a Security Interest in favour of the Company in the Goods and their Proceeds until the Contract Price has been paid for in full;
11.1.2.the Company may, without notice to the Customer, register its Security Interest in the Goods and in their Proceeds as a Purchase Money Security Interest on the Register;
11.1.3.the Security Interest is not discharged nor the Customer’s obligations affected by the administration of the Customer.
11.2.For the purposes of sections 115(1) and 115(7) of the PPSA, where the Goods are not used predominantly for personal, domestic or household purposes, the Company need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPSA and sections 142 and 143 are excluded.
11.3.For the purposes of section 115(7) of the PPSA, the Company need not comply with sections 132 and 137(3).
11.4.To the extent the Law permits, the Customer waives its rights to receive any notice that is required by any provision of the PPSA (including a Notice of Verification Statement) or any other Law before the Company or a receiver exercises a right, power or remedy.
12. Delivery
12.1.The Company will use reasonable endeavours to deliver the Goods and perform the Services to the Customer’s Premises on the date agreed between the parties. For the avoidance of doubt, the delivery of the Goods and performance of the Services will occur on the same date.
12.2.The Company will provide notice in advance to the Customer if it cannot deliver the Goods and perform the Services on the agreed date of delivery but the Company’s failure to deliver the Goods and perform the Services on the agreed date of delivery shall not constitute a breach of this Agreement.
12.3.The Customer acknowledges that delivery will be deemed to have occurred when the Company delivers the Goods and performs the Services at the Customer’s Premises.
12.4.The costs of delivery of the Goods to the Customer are for the Customer’s account whether or not the Company arranges delivery and any time quoted for delivery is an estimate only.
12.5.Upon Delivery of the Goods to the Customer’s Premises, the Customer shall be entitled to inspect the Goods for any defects.
12.5.1.If inspection of the Goods causes the Customer to reasonably anticipate or suspect that the Goods are damaged, the Customer must immediately notify the Company upon which the Company will in its sole discretion elect to rectify the defect and continue with the performance of the Services or replace the Goods and perform the Services at a later date agreed between the parties.
12.5.2.Where there is a dispute between the parties regarding any defects identified during the inspection of the Goods, the parties agree that clause 25 of this Agreement shall apply.
13. Supply Of Goods
13.1.The Company will supply the Goods:
13.1.1.with due care and skill;
13.1.2.in accordance with any specifications described in advertising literature at the time an Order is placed by the Customer; and
13.1.3.otherwise in accordance with all applicable Laws.
14. Performance Of Services
14.1.The Company will perform the Services:
14.1.1.with due care and skill;
14.1.2.in accordance with best industry practice;
14.1.3.in a professional, responsive and flexible manner;
14.1.4.by competent, trained and skilled personnel; and
14.1.5.in accordance with all applicable Laws and regulations and requirements of any relevant authorities that may relate to performance of the Services.
14.2.The Company will not be liable for any damage to existing plumbing, fixtures, flooring, walls, cabinetry or other property at the Customer’s Premises that occurs during performance of the Services unless caused by the negligent act or omission of the Company.
14.3.If the Company provides an estimated timeframe in which the Services will be performed, the Customer acknowledges that these are estimates only and the Company will not be liable for any delay in performance of the Services caused by circumstances beyond its reasonable control, including site conditions, weather, or third-party delays. The Customer further acknowledges that a breach of clause 15.3 may cause delays to estimated timeframes provided by the Company in relation to performance of the Services.
14.4.The Company reserves the right to carry out a pre-installation inspection of the Installation Area.
14.4.1.If the Company identifies any matter that may impact the performance of the Services or cause harm to the Company’s personnel, the Company must immediately notify the Customer and make an assessment as to whether the identified matter will result in the performance of the Services being impacted in any way.
14.4.2.If the Company provides notice to the Customer pursuant to clause 14.4.1, the Company is under no obligation to perform the Services until the matter the subject of the notice has been rectified to the satisfaction of the Company acting reasonably.
14.4.3.If the Company provides notice to the Customer pursuant to clause 14.4.1 and the Customer does not rectify the matter subject of the notice, the Company may terminate this Agreement and cancel the Order upon which the Customer shall have no entitlement to refund of monies paid to the Company.
14.5.The Customer acknowledges and agrees that the Company may take photographs of the Goods upon completion of the Services for internal Company use, quality assurance and record keeping purposes only.
15. Customer Obligations And Acknowledgement
15.1.The Customer acknowledges that the performance of the Goods, including water filtration performance, may be affected by factors outside the Company’s control, including water pressure, water quality, plumbing condition, and the Customer’s use and maintenance of the Goods and the Company has no liability to the Customer for the underperformance for the Goods as a result of the matters described in this clause 15.1.
15.2.The Customer must disclose to the Company prior to performance of the Services any known hazards, asbestos, contamination, structural defects, or other conditions at the Customer’s Premises that may affect the performance of the Services or pose a risk to Company’s personnel.
15.3.The Customer must provide the Company with safe and unobstructed access to the Installation Area during the agreed delivery date. If access is not available as agreed, the Company may charge the Customer a reasonable re-attendance fee.
15.4.The Customer must ensure that:
15.4.1.from the time of delivery of the Goods until completion of the Services, the Company, its employees and personnel have access to the Customer’s Premises to perform the Services;
15.4.2.the Customer’s Premises and Installation Area are suitably prepared for the safe performance of the Services;
15.4.3.the Installation Area complies with all applicable laws and health and safety regulations;
15.4.4.the Installation Area is an appropriate area for installation of the Goods.
15.5.The Customer acknowledges that the Company shall bear no liability for a failure to perform the Services or any delay in providing the Services as a result of the Customer’s failure to comply with this clause 15.
16. Insurance
The Company shall bear no responsibility for insurance of the Goods once ownership and title has passed to the Customer.
17. Warranties
17.1.The Company warrants:
17.1.1.that the Goods will be free from defects in materials and workmanship for a period of 2 years from the date of delivery of the Goods to the Customer’s Premises (Warranty Period); and
17.1.2.that the Goods and Services comply with the any guarantees that apply compulsorily under the ACL.
17.2.During the Warranty Period, the Customer must notify the Company in writing of any defect within 14 days of becoming aware of the defect.
17.3.For the avoidance of doubt, the Customer acknowledges and agrees that the Company has no liability, where notice of the defect is provided to the Company outside of the Warranty Period.
17.4.The Customer acknowledges and agrees that the warranties provided by the Company under these Terms and Conditions expressly excluded the following cosmetic issues and the Company shall have no liability in respect of:
17.4.1.external wear;
17.4.2.discolouration;
17.4.3.peeling; and
17.4.4.UV-related damage to the casing or cover of the Goods; and/or
17.4.5.external finishes.
17.5.The Customer acknowledges and agrees that the Company may, in its sole and absolute discretion, modify, replace, update or discontinue any parts, filters, components or consumables used in or supplied with the Goods (Parts) at any time and from time to time, without the Customer’s prior consent or approval. To the extent permitted by Law, all other guarantees, warranties, undertakings, or representations expressed or implied, whether arising by statute or otherwise, which are not given in this Agreement are expressly excluded.
17.6.The Company’s liability is limited, at the option of the Company to one or more of the following:
17.6.1.replacing or repairing the Goods; or
17.6.2.reimbursing the Customer the cost of replacing or repairing the Goods; or
17.6.3.re-supplying the Services again; or
17.6.4.reimbursing the Customer the cost of having someone else supply the Services, where:
17.6.5.the Customer purchases Goods and Services from the Company as a Consumer but the Goods and Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, under the ACL; or
17.6.6.otherwise if the defect arises as a result of a breach of the warranty at clause 17.1.1
17.7.The Company reserves the right to inspect any Goods or Services that are the subject of a notice given under clause 17.2 prior to determining the appropriate remedy. The Customer must make the Goods available for inspection by the Company at a time and place reasonably requested by the Company.
17.8.If the Customer is not a Consumer, to the full extent permitted by Law:
17.8.1.The Company will not be liable in any circumstances for any Loss or damage (including Consequential Loss) to the Customer or any property or Person howsoever arising out of or connected with this Agreement, the provision of the Goods and Services, the delay in delivery or non-delivery of the Goods, or the delay in completing or the non-completion of the Services; and
17.8.2.The Customer shall indemnify the Company against any claims arising out of or connected with this Agreement; the provision of the Goods and Services, the delay in delivery or non-delivery of the Goods, or the delay in completing or the non-completion of the Services.
17.9.Any warranties with respect to the Goods provided under this Agreement are limited to those warranties set out in this Agreement and are limited to the function, operation and performance of the Goods. The Company makes no warranties in relation to the cosmetic appearance of the Goods, and the Customer acknowledges that the Company shall not be liable in any circumstances for claims relating to cosmetic damage of the Goods including but not limited to:
17.9.1.fair wear and tear;
17.9.2.discolouration;
17.9.3.peeling;
17.9.4.UV related damage; and/or
17.9.5.external finishes.
18. Limitation Of Liability
18.1.The Company will not be liable for any damage to existing plumbing, fixtures, flooring, walls, cabinetry or other property at the Customer’s Premises that occurs during performance of the Services unless caused by the negligent act or omission of the Company.
18.2.Installation times quoted by the Company are estimates only and the Company will not be liable for any delay in installation caused by circumstances beyond its control, including site conditions, weather, or third-party delays.
18.3.For the avoidance of doubt and to the extent permitted by Law, the Customer acknowledges and agrees that the Company will not be liable to the Customer for Loss or damage caused by:
18.3.1.the misuse, abuse, neglect or improper handling of the Goods by the Customer or any third party;
18.3.2.the Customer’s failure to properly maintain the Goods or any unauthorised modification to the Goods;
18.3.3.the Customer failing to follow any instruction manual, directions or guidelines with respect to the Goods, provided by the Company or the manufacture of the Goods including:
18.3.3.1.the failure to engage technicians approved by the Company when maintaining or servicing the Goods;
18.3.3.2.the failure to use parts and filters approved by the Company when using the Goods; and
18.3.3.3.the failure to replace parts including the filter as recommended by any instruction manual, directions or guidelines with respect to the Goods, provided by the Company or the manufacture of the Goods.
18.3.4.the Customer failing to properly safeguard the Goods from exposure to the weather; or
18.3.5.fair wear and tear or any accident.
18.4.Without limiting any other provision in this Agreement, to the extent permitted by Law, in no event will the liability of the Company exceed the amount of the Contract Price paid by the Customer.
19. Force Majeure
19.1.Neither party will be liable for any delay or failure in the performance of any obligation or the exercise of any right under this Agreement or for any Loss or damage if such performance or exercise is prevented or hindered in whole or in part by reason of a Force Majeure Event.
19.2.Nothing in this clause excuses payment of any money due or which becomes due under this Agreement.
20. Intellectual Property
All Intellectual Property of the Company including any developed during the supply of the Goods and Services, is the sole property of the Company.
21. Confidentiality
Information supplied by a party to the other party is confidential except to the extent that it becomes public knowledge, and will not be disclosed to a third party without the written consent of the party who originally supplied the information, or as required by Law.
22. Right To Subcontract
The Company may subcontract the whole or any part of the supply of the Goods and Services.
23. Variations
23.1.This Agreement may be amended from time to time by the Company amending the Terms of Trade for legitimate business reasons upon written notice to the Customer.
23.2.The Customer may, without penalty, cancel any current Orders if it does not accept any amendment made pursuant to clause 23.1, in which case, the Company will refund the Customer any amount of the Contract Price already paid in respect of those Orders.
23.3.If the Customer fails to cancel current Orders within 7 days of receipt of notification of amendment under clause 23.1, the Customer will be deemed to have accepted this Agreement, as amended, and the amended Agreement will apply to all current and future Orders.
24. Privacy
24.1.The Company complies with the Privacy Act 1988 (Cth) and is bound by the Australian Privacy Principles and Credit Reporting Privacy Code dealing with the collection, use and storage of Personal Information, Sensitive Information and Credit Related Information.
24.2.A copy of the Company’s privacy policy can be found at the Company’s website or a hardcopy can be provided on request.
25. Dispute
25.1.If a dispute arises under this Agreement, the party claiming that a dispute has arisen must give notice to the other party specifying the nature of the dispute.
25.2.Once a notice is given in accordance with clause 25.1, the parties will attempt to negotiate a resolution in good faith.
25.3.If a dispute persists for more than 14 days, either party can refer the dispute to mediation before a mediator to be appointed by the Australian Commercial Disputes Centre. The costs of mediation will be shared by the parties equally.
25.4.Save for seeking urgent interlocutory or injunctive relief, neither party may issue court proceedings in relation to a dispute arising in connection with this Agreement until resolution by mediation has been attempted.
26. Waiver
A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or another right.
27. Unfair Terms To Be Read Down
If any law making unfair contract terms void or unlawful could apply to a term in these Terms of Trade, the following rules apply to interpreting that term:
27.1.if the law would make the term void or unlawful because the term permits us to exercise a right or discretion in a way that would cause detriment to you, the term shall be read down and construed to the extent as not to permit us to exercise the right or discretion in such a way;
27.2.if the law would make the term void or unlawful because it authorised us to recover costs or losses or damages to be calculated in a way we chose, the term shall be read down and construed as authorising us to recover the maximum reasonable costs, losses and damages to be calculated in a reasonable way that did not cause the term to be void or unlawful.
27.3.If, despite the application of this clause, the law would make the term void or unlawful, the term is to be read down and construed as if it were varied, to the minimum extent necessary, so that the term is not void or unlawful. These reading down rules apply before any other reading down or severance provision in these terms and conditions.
28. Interpretation
Unless otherwise inconsistent with the context:
ACL means The Australian Consumer Law, set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Agreement means the agreement between the Company and the Customer for the supply of Goods and Services as constituted by the Terms of Trade, and any Order submitted and any terms of credit agreed upon in writing by the parties;
Company means PureFlow Solutions Pty Ltd (ACN 671 141 521) and/or any related corporations, including any assignee or transferee or subcontractor; Australian Privacy Principles, Personal Information and
Sensitive Information have the meanings prescribed to them in the Privacy Act 1988 (Cth);
Consequential Loss means loss of revenue, profits or business opportunity and any form of consequential, special, indirect, punitive or exemplary loss or damages;
Consumer has the meaning prescribed to it in the ACL;
Contract Price means the price specified in an Order for the Goods and Services and, unless otherwise agreed in writing, excludes delivery costs;
Credit Account Customers means those Customers who engage a third party financier to finance the payment of the Contract Price.
Credit Application means the agreement or arrangement between the Customer and the third party financier.
Credit Related Information is used in this Agreement to mean Credit Information as defined in the Privacy Act 1988 (Cth), including where the context requires, information obtained from, or given to Credit Reporting Bodies;
Customer means the person or entity placing an Order, on whose behalf that person or entity is acting;
Customer’s Premises means any site owned, possessed, used or controlled by the Customer and includes the Installation Area;
Deposit means any required part payment of the Contract Price specified in an Order;
Electronic Signature means the execution of a Quotation or this Agreement by an encrypted signature being applied to a document using a proprietary program (for example DocuSign or AdobeSign) and which is applied following verification of an individual’s identity. Or otherwise the digital image of an individual’s manuscript signature (regardless of whether it is a digitally generated image, or a scanned copy of a physically signed document).
Force Majeure Event means a circumstance which is beyond the reasonable control of the affected party which results in or causes the failure of that party to perform their obligations under this Agreement including fire, storm, flood, earthquake, explosion, accident, war, rebellion, insurrection, sabotage, epidemic, pandemic, quarantine restriction or labour dispute;
Goods means water filtration systems, replacement filters, cartridges and replacement parts the Customer orders from the Company;
GST has the meaning prescribed to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
Installation Area means the area of the Customer’s Premises where the Goods are to be installed, and Services are to be performed;
Intellectual Property means all rights resulting from intellectual activity and includes copyright, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and all rights and interests of a like nature, including but not limited to methods and techniques, together with any documentation relating to such rights and interests;
Law means any relevant federal, state or local statute, ordinance, rule, regulation or standard, and includes the ACL, as amended from time to time;
Loss means any liability, including any loss, claim, damage, demand, injury or death, and any penalty imposed by a statutory or other authority;
Order means an order by the Customer for the supply of Goods and Services pursuant to this Agreement as placed by the Customer in accordance with any other order process imposed by PureFlow Solutions Pty Ltd as advised to the Customer from time to time; Person includes a corporation;
PPSA means the Personal Property Securities Act 2009 (Cth); Proceeds, Purchase Money Security Interest, Register, Security Agreement, Security Interest and Verification
Statement have the meanings prescribed to them in the PPSA;
Quotation means any written quotation provided by the Supplier for the provision of Goods;
Services means the installation of the Goods by the Company at the Customer’s Premises;
Tax Invoice means the document entitled “Sales Order / Tax Invoice” and which constitutes a Tax Invoice for the purposes of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
Terms of Trade means the provisions of this document;